Francis v. Promedica Health Sys., Inc.

601 F.Supp.3d 258

Victoria FRANCIS, Plaintiff

v.PROMEDICA HEALTH SYSTEM, INC., et al., Defendants.

Case No. 3:19-CV-02627-JGC

United States District Court, N.D. Ohio, Western Division.

Filed May 5, 2022

Daniel I. Bryant, Bryant Legal, LLC, Columbus, OH, Matthew B. Bryant, Toledo, OH, for Plaintiff.

Meghan Anderson Roth, Shawn A. Nelson, Marshall & Melhorn, Toledo, OH, for Defendants.

ORDER

James G. Carr, Senior United States District Judge This is an employment discrimination case. Plaintiff, Victoria Francis, brings claims for discrimination and retaliation under Title VII and analogous provisions of Ohio law against her former employer, ProMedica Health System, Inc. and its affiliates (collectively, ProMedica). She alleges that ProMedica discriminated against her because she is Russian and speaks with a Russian accent. She further alleges that ProMedica retaliated against her when it declined to renew her contract after she complained of discrimination.

Pending is plaintiff's Motion to Strike the Affidavit of Michelle Morris (Doc. 51). For the reasons discussed below, I deny plaintiff's motion.

Background

Plaintiff worked for ProMedica as an Acute Care Nurse Practitioner in the Wound Care division. (Doc. 51, pgID 1891). Michelle Morris was the Manager of Wound Care. (Id. ).

Defendants submitted an affidavit from Michelle Morris in support of their motion for summary judgment. (Doc. 38-3). In the affidavit, Ms. Morris details her knowledge of performance issues that plaintiff allegedly had while working in Wound Care. Ms. Morris alleges that plaintiff had communication, collaboration, and teamwork issues with other staff members. She also claims that those issues ultimately led to ProMedica's decision to not renew plaintiff's contract in Wound Care.

Plaintiff asks me to strike this affidavit. She cites to Federal Rule of Civil Procedure 12(f) and Rule 56(c)(2) in support of this request.

Standard of Review

Federal Rule of Civil Procedure 12(f) provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). In striking a pleading, a court may act on its own or upon motion of a party either before the party responds to the pleading or within 21 days of being served with the pleading. Id.

Federal Rule of Civil Procedure 56(c)(2) provides that "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). In other words, evidence that is not admissible in any form cannot support a motion for summary judgment, and thus, may be stricken. See Watters v. Summit Cty., Ohio , No. 5:14CV2390, 2016 WL 3544752, at *2 (N.D. Ohio) (Limbert, M.J.).¹

In considering a motion to strike under Rule 56, a court should "use a scalpel, not a butcher knife" and strike only those portions of the affidavit that are inadmissible. Giles v. Univ. of Toledo , 241 F.R.D. 466, 469 (N.D. Ohio 2007) (Zouhary, J.).

Discussion

1. Plaintiff's Motion to Strike Ms. Morris’ Affidavit

Plaintiff asks me to strike Ms. Morris’ summary judgment affidavit because it conflicts with her deposition testimony and affidavit submitted to the EEOC. Her primary argument relates to the difference between the words communication and collaboration. According to plaintiff, Ms. Morris stated in her deposition and to the EEOC that ProMedica did not renew plaintiff's contract because of communication issues. However, in the affidavit she submitted in support of summary judgment, Ms. Morris referred to those issues as collaboration issues.

Plaintiff also asks me to strike Ms. Morris’ summary judgment affidavit because it contains more information than her EEOC affidavit and allegedly contradicts other specific portions of her prior testimony.

A. Application of Rule 12(f)

As an initial matter, plaintiff cannot obtain relief under Federal Rule of Civil Procedure 12(f). Defendants correctly point out that this rule applies only to pleadings. The affidavit plaintiff asks me to strike here is not a pleading. Defendants submitted it as an exhibit to their summary judgment motion. As the Sixth Circuit has explained, "[e]xhibits attached to a dispositive motion are not ‘pleadings’ within the meaning of Fed.R.Civ.P. 7(a) and are therefore not subject to a motion to strike under Rule 12(f)." Fox v. Michigan State Police Dep't , 173 F. App'x 372, 375 (6th Cir. 2006).

B. Application of Rule 56

Rule 56 is instead the appropriate avenue for seeking to strike an affidavit filed in support of summary judgment. See Upshaw v. Ford Motor Co. , 576 F.3d 576, 593 (6th Cir. 2009) (noting that a court should strike portions of summary judgment affidavits that do not satisfy the requirements of Rule 56 ).

i. Communication vs. Collaboration

Plaintiff focuses most of her briefing on the difference between the terms communication and collaboration. She claims that Ms. Morris replaced her references to communication issues with references to collaboration issues. The reason for this change would presumably be to eliminate any suggestion that plaintiff's Russian accent played a role in ProMedica's decision to not renew her employment contract.

Plaintiff argues that communication and collaboration do not mean the same thing, and therefore, Ms. Morris’ testimony is contradictory. It is for that reason that she asks me to strike Ms. Morris’ summary judgment affidavit.

Defendants respond that communication and collaboration mean the same thing, and Ms. Morris used them interchangeably. They contend that when Ms. Morris said plaintiff had communication issues, what she meant was that plaintiff had difficulty working in a team. Because this testimony is not directly contradictory, defendants argue that I should not strike Ms. Morris’ summary judgment affidavit.

In deciding whether to admit a post-deposition affidavit for summary judgment purposes, a district court should first "determine whether the affidavit directly contradicts the nonmoving party's prior sworn testimony." Aerel, S.R.L. v. PCC Airfoils, L.L.C. , 448 F.3d 899, 908 (6th Cir. 2006). "A directly contradictory affidavit should be stricken unless the party opposing summary judgment provides a persuasive justification for the contradiction." Id. But if there is no direct contradiction, "the district court should not strike or disregard that affidavit unless the court determines that the affidavit constitutes an attempt to create a sham fact issue." Id.

The Sixth Circuit narrowly defines the term "direct contradiction." Briggs v. Potter , 463 F.3d 507, 513 (6th Cir. 2006). Statements are not directly contradictory if they can be simultaneously true.

S.L. by & through K.L. v. Pierce Twp. Bd. of Trustees , No. 1:07-CV-986, 2011 WL 13242965, at *4 (S.D. Ohio) ; see also https://www.merriam-webster.com/dictionary/contradictory ("a proposition ... so related to another that if either of the two is true the other is false and if either is false the other must be true").

Further, a party attempts to create a sham fact issue where it submits an affidavit for the sole purpose of creating a genuine issue of material fact to avoid summary judgment. See Giles , supra , 241 F.R.D. at 472. The purpose of the prohibition against sham affidavits is to prevent a party from abusing the summary judgment process. That is, " ‘[i]f a party who has been examined at length [under oath] could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.’ " France v. Lucas , 836 F.3d 612, 622 (6th Cir. 2016) (quoting Perma Research & Dev. Co. v. Singer Co. , 410 F.2d 572, 578 (2d Cir. 1969) ).

The sham affidavit doctrine applies to nonmoving parties who attempt to defeat summary judgment by filing a contradictory affidavit. Reed v. City of Memphis, Tennessee , 735 F. App'x 192, 198 (6th Cir. 2018). It does not apply where "the moving party files an allegedly contradictory affidavit with his or her motion for summary judgment." Id. (emphasis in original).

a) Ms. Morris’ Affidavit Is Not Directly Contradictory

Turning to the first question of whether Ms. Morris’ summary judgment affidavit directly contradicts either her EEOC affidavit or deposition testimony because it uses the term collaboration rather than communication, I find that it does not.

I agree with plaintiff that the words communication and collaboration are not interchangeable on their face. But that does not mean that they are directly contradictory. Further, I cannot examine the words in a vacuum but must examine them in the context of the testimony in this case.

The testimony at issue relates to ProMedica's reason for declining to renew plaintiff's employment contract. According to plaintiff, Ms. Morris initially testified that the reason was plaintiff's communication issues. But in her summary judgment affidavit, Ms. Morris stated that the reason was plaintiff's collaboration issues.

That is not, however, a complete picture of Ms. Morris’ testimony. In her deposition, Ms. Morris testified that plaintiff had both communication and collaboration issues. She recounted complaints from staff members about what she referred to as plaintiff's communication issues, including plaintiff's failure to direct nurses regarding patient care. (Doc. 34-2, pgID 641-43). She also referenced collaboration and teamwork issues, noting that some staff members found plaintiff "demanding and disrespectful." (Id. , pgID 623-24, 639).

Ms. Morris used the term collaboration frequently throughout her deposition. Contrary to plaintiff's suggestion, it was not a new term that arose in Ms. Morris’ summary judgment affidavit.

Further, Ms. Morris appears to have used the terms communication and collaboration somewhat interchangeably to describe plaintiff's performance issues. There is a specific portion of...